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Bar News - October 18, 2002 Mediation: The Ten Commandments of Advocacy By: Blake M. Sutton ONE OF THE great ironies of our business is that trial lawyers spend an enormous amount of time preparing for something that very rarely happens. Only five percent of civil cases filed ever get to trial, and a far higher percentage are resolved through mediation. Yet on what do we focus most of our planning, scheming and training time - on how to conduct trials or on how to conduct mediations? The answer is obvious. The following list of suggestions is derived from numerous articles on the subject, and from the author's own experiences both as a mediator and as an advocate in mediation.
I. THOU SHALT HONOR YOGI BERRA, who said, "If you don't know where you're going, how will you know when you've arrived?" To know where we are going, we should begin preparing for mediation by trying to answer some basic questions:
How questions like these are posed and answered will drive our preparation and thorough preparation is key to successful mediation.
II. THOU SHALT PREACH THE GOSPEL OF MICK JAGGER AND THE BUDDHA. The Buddha's First Noble Truth was that there is unavoidable suffering in life. This is something our clients need to hear - the painful truth that their cases are not as good as they think, their opponent's cases are better than they think, and they will have to give some ground if they want to settle. They need to hear this from us, before the mediation starts, rather than from the mediator halfway through. Of course, we would all love to leave it to the mediator to deliver the bad news, but that doesn't often work very well. Clients need to get the message in advance that they "can't get no satisfaction" from the mediation unless they understand that "you can't always get what you want, but if you try sometimes, you get what you need."
III. THOU SHALT NOT LIE - to thyself. It's fine to say that we have to take on the hard task of giving our clients the bad news. What is harder is giving it to ourselves first. Practically everyone, lawyers included, tends to evaluate situations through a thick veil of self-interest. Studies have shown that when randomly assigned to opposite sides and given the same set of contested liability facts, two lawyers will each believe they have a 75 percent chance of winning. Obviously, the math doesn't work. We need to do our best to take a hard, objective look at our cases. We also need to try to look through our opponents' eyes, and understand why they think they will win. Better to take those hard looks before a competent mediator sticks the mirror in your face. Like revenge, bad news is best served cold.
IV. THOU SHALT TALK TO THE CAMERA. Preparation for trial always centers on how to make the best pitch to our audience - the jury. Once in trial, we never take our eyes off that audience; we look right at the jurors and try to give our openings and closings in their language, not ours. Yet, curiously, when we approach mediation, we often fail to devote the same attention to how to influence our principal audience - the opposing party. We may not think hard enough about who that person is, and what messages may or may not resonate with him or her. Our first opening statement, the mediation summary, is usually full of language and argument aimed at the mediator or opposing counsel only, even though it is quite likely that the party also will be reading it. Our second opening statement, beginning the actual mediation session, may well be directed toward opposing counsel or, worse yet, toward the mediator. (Would any trial lawyer ever direct his or her opening argument toward the judge, and not toward the jury?) These two opening statements are our best opportunities to sell ourselves and our case to the other party. Why address them to the wrong audience?
V. THOU SHALT NOT COVET MUHAMMAD ALI'S TITLE. At weigh-in, Ali liked to tell opponents that he was "The Greatest" and that they were going to "get whupped." Of course, he was about to have a fight; we are trying to reach an agreement. Lecturing an opponent and opposing counsel in an opening statement about our great case and their terrible case will please our client - pleasing the client is always good - but this tactic is unlikely to accomplish much else. Most mediation experts agree that a party's cause is better served by an opening statement that is professional, prepared and civil, but not particularly adversarial; one that opens rather than closes doors. References to "malingerers," "unfair insurance companies," "scam artists," or "bad faith" seldom open doors. If our mediator is any good, he or she will deliver the bad news to the other side, at the appropriate moment.
VI. THOU SHALT NOT STEAL thy client's thunder. Very few lawyers, in my experience, let their clients say much during the opening session. Why not? There are several situations in which letting the client speak for him or herself makes a lot of sense. The plaintiff in a personal injury case, if he or she is appealing, may make a powerful impression on the skeptical adjuster, who often has never met this person before. All other things being equal, nice plaintiffs get more money than nasty ones, so it makes sense to showcase the nice ones. Other plaintiffs may need to tell their stories before they are ready to settle - and telling it to the mediator in caucus may not be enough. On the other side of the table, often the presence of the defendant, and perhaps some words of sympathy or even apology, may make all the difference. The defendant may also have a story that needs to be told before the process can move on. Of course, if clients are going to speak, they must be properly prepared. They are going to be giving trial testimony - and the jury to be influenced is the other side.
VII. THOU SHALT GET IN THY FIRST SERVE. A good first serve in tennis is delivered with maximum speed and spin right to the edge of the court. But if it's outside the lines, it doesn't have to be hit back; instead, the server has to try again. Likewise, an absurd offer or demand accomplishes little or nothing other than posing an implicit invitation to try again. It does no good at that point to pout and say, "I don't bid against myself," when the first try was no bid at all. Some studies on negotiation suggest there is a significant advantage to being the first party to make what the other side perceives as a reasonable proposal; by doing so, one may set the parameters for all subsequent negotiation.
VIII. THOU SHALT BE PATIENT. Mediation has been likened to a dance: The path to settlement can be as winding and circuitous as an Elizabethan round, and can take a lot longer to complete. There are moves, countermoves and coded messages. There are lulls in the action. There is much to be gained by staying with the process and paying close attention to the messages being sent and received. There is much to be lost by losing patience and drawing lines in the sand. These are either real lines, which cut off the process unnecessarily and prematurely, or are illusory and erode our credibility and bargaining power with the other side. Clients, particularly those unfamiliar with the process, need to be carefully prepared for the stylized nature of these proceedings, and need to have some understanding of the messages conveyed by various moves. This will help them realize the process is moving forward, even though that may not be apparent to the naked eye. Without this understanding, they may become impatient and angered, and a good chance to settle the case may be lost.
IX. THOU SHALT RESUME HIGH SCHOOL DATING. There is a classic high school dating technique that often comes in handy in mediation. In high school, a cautious young fellow would ask his best friend to ask his sister to present her best friend with a hypothetical question: If he asked her, would she go with him to the dance? The beauty of this question was what the politicians now call "deniability." These days, not infrequently a moment comes in mediation when someone has really reached his or her bottom line and wants to know whether an offer will settle the case. This can be the moment for the old high school dating proposal: If I made you this offer, would you take it? If this gambit doesn't work, it doesn't commit the party to anything. When it does work, as in high school, it can lead to some beautiful memories.
X. THOU SHALT NOT WAIT - unless you have to. In personal injury cases, plaintiff's and defense lawyers often disagree on the proper time to mediate. Plaintiff's counsel wants the defense to "stop stalling;" the defense wants to make sure it hasn't missed the "smoking gun" medical record. The bottom line, not just in personal injury but in all civil cases, is that usually both sides benefit from mediating sooner rather than later. The advantages are simple - positions and tempers have less time to harden, and less money is spent on preparation (which may, then, be available for settlement). Also, it's very rare for a smoking gun to actually appear late in discovery. There are those cases that go to mediation, but, by the end of the day, can't be settled. This is disappointing, but seldom a big loss for anyone. Clients need to be reminded that this is no time for recriminations, slamming of doors, or ultimatums. More likely than not, the case will settle some time down the road, if positive channels of communication can be kept open. These Ten Commandments, of course, aren't cast in stone. Each is subject to numerous exceptions and modifications; advocacy in mediation is an art, not a science. Still, keeping these ideas in mind will be helpful in achieving what our clients want: a timely and reasonable resolution of their disputes. Blake M. Sutton is an attorney with Nelson, Kinder, Mosseau & Saturley, Manchester, and a Rule 170 mediator.
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